ENGLAND & WALES Law and Practice Contributed by: Steven Kay KC, Richard Paton-Philip, Kabir Sondhi and Lucy Kinder, 9BR Chambers
in Scotland (which has a separate and distinct legal system to England & Wales), but that will not be covered here. Misappropriation of funds and embezzlement of public funds would likely be covered by the general fraud and theft offences under Section 1 of the Fraud Act 2006 and Section 1 of the Theft Act 1968. One of the species of fraud as set out in Section 4 of the Fraud Act involves fraud by abuse of a position. A person commits fraud by abuse of position if they (by act or omission): • occupy a position in which they are expected to safeguard, or not to act against, the finan - cial interests of another person; • dishonestly abuse that position; and • intend, by means of the abuse of that posi - tion, to make a gain for themselves or another, or to cause loss to another or expose another to a risk of loss. The general common law offence of Misconduct in Public Office can also cover the types of con - duct set out above. An offence is committed by a public official if they, acting in their capacity as a public official, wilfully neglect to perform their duty or wilfully misconduct themselves, to such a degree that it amounts to abuse of the public’s trust in them, without reasonable excuse or jus - tification (see Attorney-General’s Reference (No 3 of 2003) [2004] EWCA Crim 868). 2.5 Intermediaries The provisions of the Bribery Act make it clear that offences of bribery can be committed either directly or through third parties. Offences of Misconduct in Public Office may be committed by third parties by aiding or abetting a principal’s offence, or as a conspirator with the public officer in the commission of the offence
(see R v Chapman and Others [2015] EWCA Crim 539). In more general terms, there is no set rule in England & Wales whether criminal offences can be committed through third parties or not. It is necessary to look at the law providing for the offence and its factual circumstances, and then consider whether the secondary party provisions of Section 8 of the Accessories and Abettors Act 1861 may apply. A third party may be charged with the inchoate offences of conspiracy (Sec - tions 1 and 1A of the Criminal Law Act 1977) or encouraging/assisting an offence (Sections 44–46 of the Serious Crime Act 2007). 2.6 Lobbyists The Transparency of Lobbying, Non-Party Campaigning and Trade Union Administration Act 2014 set up the Office of the Registrar of Consultant Lobbyists, which regulates lobby - ing activities. Any person or organisation car - rying out the business of consultant lobbying must be entered in the Register of Consultant Lobbyists. A person carries on the business of consultant lobbying if, in the course of business and in return for payment, the person makes communications on behalf of another person or persons to a Minister of the Crown or permanent secretary, relating to: • the development, adoption, or modification of any proposal of the government to make or amend primary of subordinate legislation; • the development, adoption, or modification of any other policy of the government; • the making, giving, or issuing by the govern - ment of, or the taking of any other steps by the government in relation to any contract or other agreement, any grant or other financial assistance, or any licence or other authorisa - tion; and
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